Transjudicial communication: parallel monologues vs. real dialogue? A case study on the Supreme Court of Canada and the European Court of Human Rights

Constitutional systems are interconnected with each other, and legal ideas have increasingly been exchanged between different constitutional systems. Courts are playing a crucial role in this globalization: they are almost always inspired by and often cite foreign law in their decisions. ‘Judicial dialogue’ is a widely used term for this process in the legal scholarship. However, ‘dialogue’ postulates a two-way communication, an opportunity for understanding the differences and influencing (even shaping) the other party. In the practice, one of the courts is often an unconscious participant. The paper uses the case study of the relationship between the Supreme Court of Canada and the European Court of Human Rights to examine whether it is really a dialogue or rather parallel monologues. It assesses the interrelatedness of the case-law, the form and channels of the communication, the contribution to the development to the other court’s jurisprudence, and the challenges of the dialogue.